Calcutta High Court
Chandra Udyog And Anr vs Kolkata Municipal Corporation And Ors on 27 September, 2024
Author: Arijit Banerjee
Bench: Arijit Banerjee
OD-3
RVWO/39/2024
IA NO. GA/1/2024
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
CHANDRA UDYOG AND ANR.
Vs.
KOLKATA MUNICIPAL CORPORATION AND ORS.
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
The Hon'ble JUSTICE APURBA SINHA RAY
Date : 27th September, 2024.
Appearance:
Mr. Abhrajit Mitra, Sr. Adv.
Mr. Arindam Banerjee, Adv.
Mr. Chayan Gupta, Adv.
Mr. Souradeep Banerjee, Adv.
Mr. Dwip Raj Basu, Adv.
...for the petitioners
Mr. Ashok Kr. Banerjee, Sr. Adv.
Mr. Arijit Dey, Adv.
...for the respondents
The Court : Affidavit-of-service be taken on record.
This application has been taken out by the appellants for review of a
judgment and order dated August 29, 2024, whereby APO/86/2023 was
disposed of by us.
Mr. Mitra, learned senior counsel appearing for the review applicants,
candidly says that this is really an application for clarification of a certain
point. He refers to paragraphs 39 and 40 of the judgment which read as
follows:
"39. Having said all of the above, we are not oblivious of the
importance of a citizens' right to property. Such a right may not be a
fundamental right any more. However, it is still a valuable
Constitutional right enshrined in Article 300A of the Constitution of
India and has come to be recognised as a human right. Once the
heritage tag is put on a property, the right of the owner of the
property to deal with it becomes severely restricted. For example, a
Grade - I Heritage property cannot be touched at all. The owner
cannot reconstruct the property or do anything which will alter the
external appearance of the property. We are of the view that before
a property is declared as heritage, the owner thereof should be
afforded an opportunity of showing cause as to why such course of
action should not be adopted. Preferably, an opportunity of hearing
should be granted to the owner. Since, marking a property as
heritage has adverse civil consequences for its owner by curtailment
of his right and/or freedom to deal with the property in the manner
he wishes, the salutary principles of natural justice require that the
owner be granted an opportunity to raise his objection to KMC's
proposal to declare his property as heritage.
40. This is exactly what the learned Single Judge has directed, in
effect and substance. The competent authority in KMC has been
directed to consider the appellants' representation made on May 12,
2023 and decide the issue of whether or not demolition and
reconstruction of the concerned building may be permitted upon
removing the same from the heritage list or appropriately down-
grading the same. As recorded above, local inspection has already
been held by the KMC Authorities with the participation of the
appellants. The inspection report has been circulated amongst the
concerned parties. The competent authority may take a final
decision after affording an opportunity of hearing to the appellants in
terms of the learned Single Judge's order. This exercise must be
concluded within 8 weeks from the date of the instant judgment and
order. We clarify that at the hearing, the appellants will be entitled
to urge all point as may be open to them in law and in the facts of
the case, including the point that the property in question should not
have been declared as heritage, in the first place.
Mr. Mitra says that it should only be clarified that the competent
authority in KMC at the time of giving hearing to the appellants in terms of
the judgment and order under review and deciding the issue that has been
sent back to that authority, shall not be influenced by any observation in the
judgment and order under review.
We think this a fair suggestion.
Mr. Ashok Kr. Banerjee, learned senior counsel representing KMC, in his
usual fairness, also says that it would be appropriate to clarify the judgment
and order in the manner sought for by the review applicants.
Accordingly, we clarify that while granting hearing to the review
applicants and deciding the issue of heritage, the competent authority in
KMC shall not be influenced by any observation in the judgment and order
dated August 29, 2024 and shall come to an independent conclusion in
accordance with law.
If the appellants are of the opinion that the authority is proposing to rely
on documents which are in the exclusive custody of the KMC authorities, the
appellants would be at liberty to write a letter to the competent authority for
copies thereof and we are sure that the competent authority shall supply
copies thereof in observance of the principles of natural justice.
RVWO/39/2024 along with IA No.GA/1/2024 are disposed of.
(ARIJIT BANERJEE, J.)
(APURBA SINHA RAY, J.)
kc.
